MIGUEL MIJAREZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Mijarez was convicted of one count of lewd and lascivious battery and two counts of lewd and lascivious molestation of a fourteen-year-old girl. The court reversed two of the three convictions because all offenses arose from a single criminal episode and did not involve separate criminal intents.
The court reversed the two convictions for lewd and lascivious molestation and affirmed the conviction for lewd and lascivious battery because all three counts arose from the same criminal episode without evidence that Mijarez paused, reflected, and formed a new criminal intent between the touching incidents.
[1] Multiple convictions and sentences for lewd and lascivious behavior arising from a single sexual encounter are improper.
[2] When determining if multiple convictions for lewd and lascivious behavior are permissible, courts consider the spatial and temporal aspects of the surrounding circumstanc…
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Join FLexlaw to unlock all legal intelligence“It cannot possibly be said that Mijarez paused, reflected, and formed a new criminal intent each time he touched this girl during this one sexual encounter.”
Establishes the test for improper multiple convictions—whether the defendant had opportunity to pause and form a new intent between acts
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMijarez, age twenty, met a fourteen-year-old girl at a convenience store and invited her to his house. In his bedroom, they kissed, Mijarez fondled he…
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BERNSTEIN, SCOTT M., Associate Judge.
The State charged twenty-year-old Mija-rez with one count of lewd and lascivious battery of a fourteen-year-old girl, and two separate counts of lewd and lascivious molestation, all in violation of section 800.04 of the Florida Statutes. The jury found Mijarez guilty on all three counts. He was sentenced as a prison releasee reoffender to serve concurrent terms of fifteen years imprisonment on each count. Because we find all three counts arise from the same criminal episode, we reverse the two convictions for lewd and lascivious molestation.
Mijarez met the girl at a convenience store across the street from her high school. He asked her to go back to his house and she agreed. They went into his bedroom, spoke for a few minutes and began kissing. Mijarez fondled her, helped her disrobe, and had intercourse with her. The State separated this incident into three counts, one for lewd and lascivious battery, and two counts for fondling different parts of the girl’s body.
In Coffield v. State, 872 So. 2d 430 (Fla. 4th DCA 2004), this Court recently reversed multiple convictions and sentences for lewd and lascivious behavior during a single sexual assault. Relying on Eaddy v. State, 789 So. 2d 1093 (Fla. 4th DCA 2001), we considered the spatial and temporal aspects of the surrounding circumstances and determined that the defendant did not have time to “pause, reflect, and form a new criminal intent between occurrences.” Id. at 1095. The same analysis applies here. It cannot possibly be said that Mijarez paused, reflected, and formed a new criminal intent each time he touched this girl during this one sexual encounter. Therefore, multiple convictions and sentences here are improper.1
We are unpersuaded, however, by Mija-rez’s other issues raised on appeal. Therefore, we reverse the convictions on Counts II and III, affirm the conviction on Count I, and remand with instructions to reconsider sentencing in light of the reversals.
POLEN and MAY, JJ., concur. . Courts around the state have used a similar analysis to reach the same result. See Cabenela v. State, 871 So. 2d 279 (Fla. 3d DCA 2004); King v. State, 834 So. 2d 311 (Fla. 5th DCA 2003); Moman v. State, 811 So. 2d 714 (Fla. 2d DCA 2002).
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Citator
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Bertram L. Capron v. State, 948 So. 2d 954 (Fla. 5th DCA 2007)…789 So. 2d 1093, 1095 (Fla. 4th DCA 2001). In the period that it took Mr. Capron to take M.W. to the sink and wash her and then walk her back to the bed, he “had time to pause, reflect, and form a new criminal intent....” Id.; see Mijarez v. State, 889 So. 2d 827, 828 (Fla. 4th DCA 2004) (stating that “spatial and temporal aspects of the surrounding circumstances” must be analyzed to determine whether defendant had “time to pause, reflect, and form a new criminal intent between occurrences”); see also Paul (…
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Beahr v. State, 992 So. 2d 844 (Fla. 1st DCA 2008)…t for determining whether two crimes occurred in the same criminal episode is whether there was a temporal break between the crimes, such that the defendant had an opportunity to pause, reflect, and form a new criminal intent. Id.; Mijarez v. State, 889 So. 2d 827, 828 (Fla. 4th DCA 2004). If there was such a break, then the crimes occurred in separate criminal episodes and may be punished separately. Paul, 934 So. 2d at 1173. On the other hand, if the court determines that the two crimes occurred in a singl…
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Drawdy v. State, 98 So. 3d 165 (Fla. 2d DCA 2012)…e, e.g., Leyva v. State, 925 So. 2d 393 (Fla. 4th DCA 2006) (holding attempted sexual battery and lewd and lascivious conduct of touching hand and leg in same episode were one offense because there was not time to form new intent); Mijarez v. State, 889 So. 2d 827, 828 (Fla. 4th DCA 2004) (reversing convictions for two counts of lewd or lascivious molestation in same episode as lewd or lascivious battery where it could not be said that defendant paused, reflected, and formed new criminal intent each time he f…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Eaddy v. State, 789 So. 2d 1093 (Fla. 4th DCA 2001)
- Morman v. State, 811 So. 2d 714 (Fla. 2d DCA 2002)
- King v. State, 834 So. 2d 311 (Fla. 5th DCA 2003)
- Cabanela v. State, 871 So. 2d 279 (Fla. 3d DCA 2004)
- Coffield v. State, 872 So. 2d 430 (Fla. 4th DCA 2004)